HKSAR v. Wan Choi Fai

HCMA000250/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 250 OF 1998

_______________

________________

Coram: The Hon. Mr. Justice Hartmann in Court

Date of Hearing: 24 April 1998

Date of Judgment: 24 April 1998

________________

J U D G M E N T

________________

1. The Appellant in this matter was convicted on his own plea of the single count of possession of the dangerous drug commonly called ice. The quantity consisted of 0.686 grams of a crystalline solid containing 0.683 grams of narcotic. He was sentenced to 6 months in prison and now appears in person to appeal that sentence as being wrong in principle and/or manifestly excessive.

2. The Appellant has argued that persons in his situation who have no previous convictions for drug offences invariably receive fines or, at worst, suspended sentences. However , Chan J. in SAR v. Lam Wai-king (Ma 238 and 240 of 1997), in considering sentences passed for possessing less than a gram of heroin, was of the opinion that a starting point of 12 months imprisonment was not excessive. The sentencing Magistrate was aware of this authority and he too took 12 months as a starting point. Admittedly, this Appellant was convicted of possession of ice not heroin. But there is clear authority for the fact that our courts consider the drugs to be equally dangerous, both to the abusers of the drugs and to society in general. In Attorney General v. Ching Kwok-hong (1991) 2 HKLR 125, Silke V.P. said:

"One-tenth of a gram of ice without re-use would be sufficient for three to four of what in the vernacular are called 'hits'. An ice addict needs far less of the substance than does a heroin addict. Ice call be used and re-used."

3. He continued, in assessing a guideline for sentence:

"We are persuaded that ice is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers, and to society in general, than is heroin ...

In our judgment, in that sliding scale, because of its highly addictive nature, its ease of manufacture and its intense effect, ice comes in at the same level, if not slightly above heroin."

4. In my judgment, the Magistrate was clearly entitled to view ice in the same light as heroin and to sentence accordingly.

5. What then of the personal circumstances of the Appellant? It is true, of course, that he has no previous convictions for drug offences. However, in 1994 he was convicted of attempted burglary and in 1995 of the offence of managing a vice establishment. A year later, he was convicted of an offence under our immigration laws. The Appellant was not, therefore, entitled to any discount for a previously unblemished record.

6. Having correctly taken 12 months as a starting point, the Magistrate reduced it by 25% to take into account Appellant's plea of guilty. He gave reasons why he was not reducing the sentence by the full one third. Even if it could be argued that the Magistrate erred in not granting the full one-third, it is to be noted that the Magistrate went on to give a further generous discount to cater for the fact that, despite the Appellant's criminal record, this was his first drug-related offence.

7. In the circumstances, I am satisfied that the sentence was neither manifestly excessive nor wrong in principle. The appeal is dismissed.

Representation:

Mr. Tam Sze-lok, S.G.C., for Director of Public Prosecutions.

WAN Choi-fai, Appellant, in person.